(dissenting). Eully agreeing that only in an extraordinary case is this court warranted in rejecting the concurrent decisions of both Porto Rican courts on a mixed question of local law and fact, examination of the bulky record herein forces me to the conclusion that the decisions below are plainly wrong and ought to be reversed. It is indisputable — practically undisputed — that for about 40 years the plaintiff and the defendant toiled) together and accumulated a substantial property, nearly all of which was finally absorbed by the illegitimate, but recognized, daughter of Avelino; Avelino having, in the later period of his life, apparently come under the dominant control of this illegitimate daughter’s husband. Conceding that the evidence warranted a finding against the broad allegation of a ganancial partnership, I can find no warrant for holding the plaintiff not entitled to an accounting for her property and work put into the joint enterprise. But the plaintiff’s right to this limited relief is denied on the technical and utterly unwarranted ground that it was not adequately prayed for in the complaint. On general principles and under the specific provision of section 191 of the Porto Rican Code of Civil' Procedure, this ruling is unsound. That section provides that, where there is an answer, relief consistent with the case made by the complaint and embraced within the issue may be granted. The general issue in this ease is plaintiff’s right to have from Avelino’s estate the value of the property and services she has added to that estate. Cf. Johnson v. Polhemus, 99 Cal. 240, 33 P. 908, construing a similar provision in the California Code. Dennison v. Chapman, 105 Cal. 447, 454, 39 P. 61, is to the same general effect.
' The overwhelming weight of the evidence is that the essential relations between the parties were business relations — not illicit sex relations. The plaintiff took her cattle and poultry with her when she — not later than 1887, probably about 1880 — began to live in the same house with Avelino, who then seems to have had about the same sort and amount of business assets. Avelino was illiterate— not even able to count money. The clerical and arithmetical details of the business carried on by the two were all performed by the plaintiff. She arose early (about 3 a. m.) and made and sold pies, etc., to workmen; she later conducted a grocery store; she fed pigs and poultry; she did all the things that a reasonably intelligent and hard-working woman would do in a business association or partnership with an illiterate, but apparently energetic and shrewd, male associate. The facts that before they began living together the plaintiff had an illegitimate son by another man, and that later Avelino had one or more illegitimate children by another woman, tend to support the general conclusion that the essence of the relations between these two were business relations, and not grounded on illicit sex relations. Lack of chastity does not invalidate otherwise legal business relations. Their unchaste relations were, on this record, a mere incident of their association for business purposes. Neither party showed any regard for the sex restraints essential to the rights of children and the integrity of the family as a moral and social unit; but the plaintiff should not, on that ground, be deprived of the fruits of a long life of arduous and in the main menial toil, for the benefit of the illegitimate child of her business associate. Rights accruing out of labor and property embarked" in a joint venture are not destroyed by the existence of unchaste, sex relations between the joint venturers.
The case falls plainly under the doctrine laid down in the note to the ease of Mitchell v. Fish, 36 L. R. A. (N. S.) 838: “The cases support the rule that an agreement to carry on business or accumulate property is valid and enforceable, although the parties were maintaining illicit sexual relations with each other during the period covered by the contract, unless the contract was made in contemplation of such illicit relationship, as where it formed a part of the consideration.” The same principle is stated in Delamour v. Roger, 7 La. Ann. 152, as follows: “There is a manifest difference between an action for the wages or reward promised in consideration of concubinage, which can not be maintained, and a suit for property, the result of capital, industry, labor and economy.”
To the same general effect is Malady v. Malady, 25 La. Ann. 448; Viens v. Brickle, 8 Mart. (O. S.) (La.) 11; Emmerson v. Botkin, 26 Okl;. 218, 109 P. 531, 29 L. R. A. (N. S.) 787; Pereuilhet’s Succession, 23 La. Ann. 294, Am. Rep. 595; Simpson v. Normond, 51 La. Ann. 1355, 26 So. 266.
The authorities cited in the opinion of the Supreme Court of Porto Rico lead, in my view, to a result the reverse of that reached by that learned court. Indeed, I think the opinion of that court may be fairly characterized as a series of non sequiturs. And *522the conduct of the trial in the district court was not of a character to command confidence and approval. The rulings there made against the plaintiff cannot be reconciled with Rev. St. Porto Rico, § 1403, making admissible the acts and declarations of “a deceased person done or made against his interest in respect to his property.” Cf. General Laws of Massachusetts, e. 233, §§65 and 66.
Perhaps one other point deserves mention: After Avelino’s death, two tracts of land standing in the name of and on this record belonging to the plaintiff, were transferred by Avelino’s son-in-law, apparently acting for the succession, to a third party, by a deed signed by this son-in-law and containing the groundless statement that this signature was attached at. the request of the plaintiff and because she was unable to sign. ' On this record I can see no reason whatever for denying the plaintiff a remedy for the wrong. But this is simply one of the more glaring indications of general disregard of this plaintiff’s rights.
I think the ease should be. remanded for a trial de novo, for the value of the property and the services contributed by the plaintiff to Avelino’s estate.